Impending Deadlines on a Number of Immigration Decisions Await Obama

January 15, 2009

Policy Beat

By Muzaffar Chishti, Claire Bergeron

President-elect Barack Obama will need to consider several existing immigration policies soon after he assumes office on January 20, 2009, even if the new administration takes longer to formulate its larger policy on immigration reform.

The urgency comes from court and statutory deadlines, as well as some last-minute, controversial regulatory changes the Bush administration has introduced.

The policies include Social Security Administration (SSA) "no-match" letters, the E-Verify program, new rules for temporary workers, and the treatment of "enemy combatants."

While most immigration experts agree Congress will probably not pass large-scale immigration reform this year, these administrative policy decisions could shed light on the Obama administration's stance on larger immigration policy issues.

The new administration will likely face pressure from immigrant advocates, labor organizations, and business groups — many of whom are hoping for a dramatic change in immigration policy under the new Obama presidency, with or without legislative action in Congress.

"No-Match" Letters

By February 9, the Obama administration must state its position in AFL-CIO v. Chertoff, which turns on whether the Department of Homeland Security (DHS) can advise employers who receive a "no-match" letter from SSA to terminate the named employees if those employees cannot resolve discrepancies in their Social Security numbers.

In October 2007, U.S. District Court Judge Charles Breyer blocked DHS from implementing the "no-match" letter rule after a number of labor, business, and civil liberties organizations sued the agency.

DHS issued an amended rule in October 2008 and then asked Breyer for an expedited hearing. Breyer declined to grant the expedited schedule, effectively allowing the incoming administration to reexamine the issue.

E-Verify

The federal E-Verify program, which allows employers to see whether new employees are permitted to work, will expire March 6 if it is not reauthorized. Last summer, a bill to reauthorize E-Verify for another five years passed in the House of Representatives but has remained stalled in the Senate.

Fifteen states now require some or all employers to enroll in E-Verify, and government officials maintain that it prevents the hiring of unauthorized workers. Yet laws requiring certain employers to use E-Verify remain controversial.

In late December 2008, five trade groups led by the U.S. Chamber of Commerce brought suit in federal court to stop the government from requiring all federal contractors and subcontractors to use E-Verify.

Originally, all federal contractors were required to begin using E-Verify by January 15. However, because of the pending lawsuit, the start date was pushed back to February 20.

The Obama administration will have to respond to the lawsuit by February 23.

Temporary Workers

The new administration is also inheriting two controversial regulations on temporary agricultural and nonagricultural worker visas, both of which the Bush administration issued in mid-December 2008.

The regulations, which the Department of Labor first proposed in the spring of 2008, allow employers to petition for multiple, unnamed foreign-born workers to enter the United States on temporary H-2A and H-2B visas. The Bush administration has argued that the new rules will provide a more efficient process for U.S. employers seeking to hire temporary foreign workers.

Farm-labor advocates, unions, and other labor groups claim the rules will displace US workers, depress wages, and lead to employer abuse.

"Enemy Combatants"

The Obama administration also faces a February 20 deadline to communicate its position on a Supreme Court case involving the indefinite detention of "enemy combatants" — a designation the Bush administration has used since September 11, 2001, to denote persons suspected of being members or supporters of Al-Qaeda or the Taliban.

In al-Marri v. Pucciarelli, the Supreme Court will decide whether the United States can indefinitely detain a legal resident who has been labeled an "enemy combatant" but has not been formally charged with a crime. Although the case deals with Ali Saleh Kahlah al-Marri's detention on a Navy brig in South Carolina, the court's decision could have major implications for detainees in Guantanamo Bay, Cuba.

Human trafficking and other crime victims granted T and U visas may adjust their status to lawful permanent residence if they hold the visa for three years and comply with reasonable law enforcement requests, according to a new regulation from U.S. Citizenship and Immigration Services (USCIS). T and U visa holders must also have continually resided in the United States during the three-year period and demonstrate good moral character.

Congress created the T and U visas when it passed the Trafficking Victims Protection Act of 2000. Though the act stated that T and U visa holders could apply for permanent resident status, the rules had not previously been issued. USCIS can approve up to 10,000 U visas and up to 5,000 T visas each year.

Qualifying relatives of T and U visa holders may also apply for lawful permanent residence under the new regulations.

As of October 1, 2008, 11,687 U visa petitions were pending adjudication with USCIS.

Mukasey Opinion on Ineffective Assistance of Legal Counsel. Immigrants in deportation proceedings have no constitutional right to effective legal assistance, according to a new opinion by Attorney General Michael B. Mukasey. The opinion, which overturns a 20-year-old precedent, states that because immigrants in deportation proceedings do not have a constitutional right to any legal counsel, they cannot have a right to effective assistance of counsel. The opinion also states, however, that while an immigrant is not entitled to relief based on his of her lawyer's past mistakes, an immigration judge could, in his or her discretion, reopen deportation proceedings if an attorney's mistakes were considered "egregious."

US-VISIT and Lawful Permanent Residents. Beginning January 18, 2009, U.S. permanent residents returning to the United States may be required to provide digital fingerprints and a photograph through the U.S. Visitor and Immigrant Status Indicator (US-VISIT) program. US-VISIT checks the biometric information of non-U.S. citizens arriving in the United States against information on terrorists, criminals, and immigration-status violators. Prior to 2009, the program only applied to foreign visitors. Government officials have said that including permanent residents will help reduce fraud and allow officials to check whether permanent residents have been previously convicted of a crime that could make them deportable. Immigrant advocates and civil liberties groups have said the measure is an unnecessary invasion of privacy.

Decrease in Sedation of Deportees. Following criticism from the media and Congress, U.S. Immigration and Customs Enforcement (ICE) has dramatically reduced the number of immigrant detainees it sedates before deporting them, according to data obtained by The Dallas Morning News. ICE sedated only 10 deportees in the past fiscal year — a stark contrast with the 384 deportees the agency reported sedating over the past six years. In January 2008, ICE began requiring a court order to sedate an immigrant scheduled for deportation.

IFCO Settlement from 2006 Worksite Raids. IFCO Systems North America, Inc. has agreed to pay $20.7 million to settle federal charges that it hired unauthorized workers. In April 2006, ICE raided more than 40 IFCO factories nationwide and detained more than 1,100 workers. Federal prosecutors also brought charges against 13 IFCO managers. Houston-based IFCO is the country's largest pallet-management services company in the United States. The settlement is the biggest ever in a case stemming from an ICE worksite enforcement operation. Wal-Mart set the previous record with its $11 million settlement in 2005.

Report on Assimilation. Certification programs for volunteer organizations interested in teaching citizenship classes and improved communication between the federal Office of Citizenship within USCIS and state integration councils were among the recommendations from President George W. Bush's Task Force on Citizenship and New Americans. Bush created the task force in 2006 as part of a program designed to help immigrants integrate into U.S. society and learn English. The task force, which included representatives from different government agencies, was chaired by Homeland Security Secretary Michael Chertoff.

Malta in U.S. Visa Waiver Program. Malta joined the U.S. Visa Waiver Program (VWP) December 30, 2008, allowing its citizens to travel to the United States for business or pleasure without first obtaining a visa from a U.S. consulate. Before traveling to the United States, individuals from VWP countries must first receive approval through the U.S. Electronic System for Travel Authorization (ESTA), an online database that confirms that travelers do not pose a security or law enforcement threat. In November 2008, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, the Republic of Korea, and the Slovak Republic joined VWP. Currently, nationals from 35 countries are eligible to participate.

In-State Tuition for Unauthorized Students in California. The California Supreme Court will determine whether unauthorized students living in the state should be allowed to pay in-state tuition rates at California state colleges and universities. Under California law AB-540, students who have attended at least three years of high school in California, graduated from a California high school, and met certain other requirements are allowed to pay in-state tuition rates. Students who fall within the parameters of AB-540 include unauthorized immigrants living in California, as well as U.S. citizens and permanent residents who attended high school in California but do not have state residence. In Martinez v. Regents of the University of California, the plaintiffs, U.S. citizens who are not California residents, allege that AB-540 violates federal law.

Visit the MPI Data Hub for the latest stats on immigrants in California.

No Convictions under Arizona Law. A year after Arizona implemented a state law prohibiting employers from hiring unauthorized immigrants, not one employer has been prosecuted for violating the law. Arizona officials say the Legal Arizona Workers Act, considered the toughest such law at the state level, is too difficult to enforce as prosecutors do not have the power to subpoena employers for needed records. In addition, officials say that many businesses that traditionally employ immigrants have not hired new workers in the past year due to the recession. The act requires all Arizona business to enroll in the federal E-Verify program and can penalize violators with the loss of their business licenses.

Missouri and E-Verify. All state agencies and departments of the state of Missouri must enroll in the federal E-Verify program as of January 1, 2009, in accordance with a state law passed in July 2008. Businesses in Missouri with a state contract in excess of $5,000 must also enroll in E-Verify. The law, HB 1549, is modeled after similar initiatives enacted in Colorado, Georgia, Minnesota, Oklahoma, Rhode Island, and Utah.